Williamson v. Aberdeen Automobile & Supply Co.

MeCOY, P. J.

There was a v-erdict and judgment for defendant, and plaintiff appeals.

Plaintiff alleged two separate causes of action; (x) Upon a promissory note for $671.80, executed and -delivered by defendant to the Federal Rubber Manufacturing Company, and indorsed and -delivered to plaintiff by said payee; (2) upon an account for $236.30 for goods, wares, and merchandise sol-d and delivered to defendant by the Federal Rubber Manufacturing Company, and’ which account by written assignment was -transferred to- plaintiff.

Defendant made answer, alleging that plaintiff is not the owner of said note and account; that the Federal Rubber Manu-factoring Company is a foreign corporation that has not filed in the office of the secretary of state a duly authenticated copy of its articles of incorporation, and has not appointed an agent residing within this state authorized to accept service of process, and has not filed and recorded a copy of such appointment;' that the assignment of said note and account ,to plaintiff was made by the said Federal Rubber Manufacuring Company, a foreign corporation, for the purpose of enabling it to avoid the provisions of section 883, 884, and 885 o-f .the Civil Code. Defendant also pleaded payment; that the consideration for said note and account was auto-mobile casings, tires, and other supplies, warranted by said Federal Rubber Manufacturing Company to defendant; that there had been a breach of such warranty; and that many of -the casings, tires, and other supplies had been returned to- said Federal Rubber Manufacturing Company, and that defendant had been damaged by reason of the breach of such warranty; and that by reason thereof defendant was not indebted to plaintiff upon said note and account.

On the trial the plaintiff produced the original note, containing thereon the written indorsement thereof to plaintiff by said Federal Rubber Manufacturing Company; and plaintiff also- offered in evidence the written assignment -of said account to plaintiff by said Federal Rubber Manufacturing Company, together with evidence tending to -establish the genuineness of the indorsement of the note -and assignment of account. There was no evidence of any .cbara-Gtr offered by defendant -tending in any manner to contradict said indorsement -of note or assignment of account. There was much evidence introduced pro and -con relative to the breach of warranty, -payments and damages.

The court, among other things, instructed the jury as follows:

“The first question you are to -decide is whether or not the plaintiff in this action owns the note and account sued on, and if you find from the evidence, by the preponderance -of -such evidence, that -the plaintiff- is not the -real owner of said note and account, then your verdict should- be for defendant.”

To the giving of this instruction the -plaintiff -duly excepted, and now contends that the giving of su-ch instruction was error. We are of the view -that appellant is right in this -contention. It submitted to the jury, and permitted it to- find a verdict for defendant, upon a question not in issue. The answer, inferentially at least, admits the assignment of the note and account to plaintiff, but alleges that such assignments were made for the .purpose of enabling said Federal Rubber Manufacturing Company to avoid the statute in relation to foreign corporations. This court has heretofore -held- that such an answer raises no. defense; that such assignments are matters between the parties thereto' in which strangers have no concern. Bank v. Corkings, 9 S. D. 614, 70 N. W. 1059, 62 Am. St. Rep. 891; Dewey v. Komar, 21 S. D. 117, 110 N. W. 90; Coffin v. Smith, 26 S. D. 536, 128 N. W. 805. It will serve no useful purpose to refer to other assignments of error.

The order and judgment appealed from are reversed, and the cause remanded for further procedure.